Risks versus rights in home birthing: a legal view

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Bill Madden does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.

The ongoing and sometimes emotive debate about risks and rewards of giving birth in hospital or at home is nothing new. What is new is the attention being given to the legal rights and responsibilities of parents and health practitioners.

Consider this recent news: South Australian police have announced criminal investigations of the deaths of two babies in home-birth deliveries. Detectives are said to be closely examining evidence given by witnesses during an earlier inquest to determine if perjury was committed or evidence was withheld or concealed. Charges, including manslaughter, may be laid.

This is a highly unusual development.

As a general rule, few health practitioners are subject to criminal charges in Australia, although the number has perhaps been growing in recent years. The imprisonment of Dr James Peters in Victoria is a recent, albeit unusual, example.

Australia has not yet seen the prosecution of a midwife or doctor following a home birth – though we have seen cases come before disciplinary tribunals, coroners’ courts if the child has died, or civil courts if the child or mother is said to have suffered injury for want of reasonable care.

So how do parents wanting home births and their health-care providers now navigate the legal landscape?

Risk assessment

Central to legal arguments about home births is the assessment of risks and the provision of accurate information. The latter is crucial to the question of whether a mother’s decision about where she gives birth is well informed.

Only a few weeks ago, a Victorian coroner reported in relation to the death of a child, Thomas Freemantle, following a home birth. The birth was complicated by cephalo-pelvic disproportion, a condition whereby the baby’s head or body is too large to fit easily through the mother’s pelvis.

The parents agreed that medical practitioners had told them of the risks of a home birth given aspects of the mother’s medical history, but argued they were “not sufficiently firm in their advice that Thomas should be born at hospital”.

The coroner’s view was bluntly stated: “high-risk pregnancies demand birth occur in the safest setting – namely, a hospital which can provide emergency and timely, medical support”. He went on to say that “the safety of the child is paramount and … the wishes of the parents always secondary to ensuring the safest birthing process”.

But it may not be entirely true, in the legal sense, to say the wishes of parents are always secondary to ensuring the safest birthing process. While the coroner spoke in favour of unambiguous communication, that does not guarantee a mother will always simply accept the given advice (whether by doctors or midwives).

The rights of mothers

An example of advice being given but not accepted can be found in a decision earlier this month, where a hospital had declined to provide a mother with home birth services under its program because of medical concerns – namely, her age and the number of her earlier pregnancies.

The mother argued the hospital’s refusal was discriminatory and in breach of her human rights, but the Victorian Civil and Administrative Tribunal found the medical advice was sound. Neither argument by the mother, as to discrimination or breach of human rights, succeeded.

This returns us to the earlier suggestion (by the Victorian coroner) that the wishes of parents are always secondary to ensuring the safest birthing process. The mother (having been refused participation in the hospital’s home birth program) simply chose to deliver at home without a midwife in attendance, as she appears to have done on five prior occasions.

The law recognises that a mother, when not clearly lacking the capacity to make decisions, is able to decide where to give birth freely, regardless of advice about the safest birthing process.

Further complications for mothers may arise in assessing the quality of advice provided to them. Not all advice is good advice, not all care is good care. Disciplinary case examples highlight that unfortunate reality.

Making sense of it all

So what are the emerging legal trends? While this area of law seems under constant development, perhaps the following can be safely said:

health practitioners should give clear and sometimes robust advice about the risks of home birth in the context of known medical history, so mothers can make informed choices.

a mother has the right to choose where to deliver her child, but that does not extend to forcing a health-service provider to allow a home birth service it has decided is unsafe for her or her unborn child, in accordance with accepted clinical practice.

for those health practitioners and providers who offer services unsafe for the patient or the unborn child, existing civil and disciplinary action precedents may soon be followed by criminal charges.